When should a parent be able to get a custody trial postponed?

By Morgan P. Appel

A recent unreported* decision of Maryland’s intermediate appellate court considered an appeal by a parent whose request to postpone a child custody trial was denied.

In general, a trial court has discretion to continue or postpone hearings ‒ and to refuse to do so. The Court of Special Appeals can reverse the trial court’s decision if there was an abuse of discretion or, in cases of exceptional circumstances, reversible error.

In Barriga v. Simich, Mother filed a complaint for sole legal custody and physical custody against Father. At the time, Father was living in Peru and was served with the papers in Peru. Father filed a counter-complaint against Mother for joint legal custody and visitation.

A custody hearing was scheduled for September 10, 2018. At Mother’s request, the Court moved the custody hearing to July 30, 2018. On its own, the Court then rescheduled the custody hearing for August 1, 2018.

Father filed a motion to postpone the July 30 hearing, asserting that he lived in Peru, received notice of the hearing on July 20, and was unable to attend the hearing due to the short notice and inability to miss work to travel to the United States. Father stated that he could travel to the United States the second week of December.

The Court wrote a note on top of Father’s motion, stating that the motion was moot because the case had been reset to August 1. The custody hearing was held on August 1, and Father was not present for the hearing. The Magistrate awarded Mother sole physical custody, sole legal custody, and child support. Father appealed. Father argued that the trial court failed to consider his request for a postponement.

Maryland courts have previously recognized cases of exceptional circumstances. Exceptional circumstances have included: 1. the Court holding a hearing when a parent is not present, without asking why the parent was absent, and without giving any consideration to whether the missing parent’s testimony would be competent or material; and 2. the Court holding a hearing when no prejudice to the other party was shown, no objection by the other party was made, and there was no urgency in holding the hearing.

Here, the Court of Special Appeals held that exceptional circumstances existed and reversed the trial court’s decision. The Court of Special Appeals found that the trial court failed to consider Father’s motion and gave no explanation for denying Father’s motion, despite Father living in Peru and not being able to travel until mid-December. There was also no urgency requiring that the custody hearing be held immediately.

* An “unreported” opinion by Maryland’s intermediate appellate court is published on the Court’s website, but may not be cited in any paper, brief, motion, or other document filed in any Maryland court, as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104. However, unreported opinions do offer insight into issues addressed by that court.

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